Abstract

This topical book analyses the practice of negotiating constitutional demands by regional and dispersed national minorities in eight multinational systems. It considers the practices of cooperation and litigation between minority groups and central institutions in Australia, Britain, Canada, New Zealand, Italy, Spain, and the U.S. and includes an evaluation of the implications of the recent Catalan, Puerto Rican and Scottish referenda. Ultimately, the author shows that a flexible constitution combined with a versatile constitutional jurisprudence tends to foster institutional cooperation and the recognition of the pluralistic nature of modern states.

This is a monograph on constitutional negotiations between central institutions and regional national minorities. The book is divided into eight chapters. The first chapter explains why and when an identity-based constitutional claim should be inserted into a democratic constitutional system. The chapter explains that sub-state national identities, from the Maori to the Basque and from Native Hawaiians to the Scottish, should be considered as an element of modern constitutional democracy. I argue that a constitution is the manifestation of a distinctive identity and that any attempt to explain it as a culturally-neutral endeavour is contrafactual. The idea of ‘neutered’ public bureaucracy, that Hegel saw as the ‘universal class’ in the Philosophy of Right, is a projection of a self-directed and imagined national community. The characterisation of the state as neutral is potentially undemocratic because it allows the majority group that has already selected the cultural features of a democracy, such as its language and its established church, to exclude political claims because they are not culturally neutral.
Chapters 2, 3 and 4 evaluate the past two decades of British, Italian and Spanish decentralisation policies. European nation states are under pressure externally by the expanding role of international organisations, such as the European Union, and internally by regionalism. Central institutions in Italy, Spain and the UK have different constitutional traditions and have chosen different strategies to grapple with the new regionalism. Italy’s federal reform has been driven by its amoral political system, called ‘neo-patrimonial’ by Fukuyama. Spain continues to experience an extensive constitutional litigation and political tensions. Hundreds of central and regional statutes to have to go through the review of the Constitutional Court. However, there are strong indications that such high levels of constitutional litigation, and the political tension related to it, are partly due to the political commodification of nationalist narratives by both regional and unionist political parties.
Chapters 5, 6, 7 and 8 review Canada, New Zealand, the US and Australia’s constitutional systems, respectively. New Zealand adopts its own variation of the Westminster Models so it has a relatively flexible constitution. Maoris and Pacific Islanders have well-supported constitutional claims (e.g. the Treaty of Waitangi) that have progressively re-shaped the economic and territorial structure of the Kingdom of New Zealand. Canada, the US and Australia all have rigid constitutions. These, like New Zealand, are large, multicultural and mostly unbidden immigration nations that endorse civic nationalism and their distinctive, substantive constitutional patriotism. A democratic constitution should be, amongst other things, a historical manifestation of a covenant between individuals who might otherwise have nothing in common. This assumption is unproblematic insofar as it is not engaged by identity groups that pre-existed that model of political association. The chapters on Canada, New Zealand, the US and Australia discuss the effects that identity-based constitutional claims by national minorities, such as Native Hawaiians, Puerto Ricans, Quebecois and Aboriginals, have on these constitutional systems.

Faculty / Department / School:

Current - Faculty of Business, Education, Law and Arts - School of Law and Justice